Rajendra vs The State Of U.P.
- Court
- Allahabad High Court
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HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 956 of 2006
Rajendra .....Appellant(s)
Versus
The State of U.P. .....Respondent(s)
Counsel for Appellant (s) : Virendra Moha, Ambica Tripathi,
Avikshit Mishra, Raj Kumar
Mishra, Rakesh K. Tripathi, Ram
Avtar Singh, Ramkant Jayswal
Counsel for Respondent(s) : Govt. Advocate
Court No. -10
Reserved on 17.03.2026
Delivered on 27.05.2026
A.F.R.
HON'BLE RAJNISH KUMAR, J.
HON'BLE ZAFEER AHMAD, J.
(Per : Rajnish Kumar, J.)
(1) The instant criminal appeal under Section 374 (2) of the Code
of Criminal Procedure, 1973 (here-in-after referred to as
“ Cr.P.C. ”) has been filed by the accused/convict/appellant,
Rajendra, assailing the judgment and order dated 28.04.2006
passed by Additional District & Sessions Judge, Court No.4,
Hardoi, in Sessions Trial No. 485 of 2005; State Versus
Rajendra, emanating from Case Crime No. 112 of 2005, under
Section 376/511 of the Indian Penal Code, 1860 (here-in-after
referred to as “ I.P.C. ”), Police Station Beniganj, district Hardoi,
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whereby the accused/appellant has been convicted and
sentenced under Section 376 I.P.C. to undergo life
imprisonment and a fine of Rs.10,000/-. In default in payment
of fine, the accused/appellant would undergo one year’s
additional rigorous imprisonment.
(2) The prosecution case, in short, is that complainant, Smt.
Rooprani, had submitted a written report at police station
Beniganj, district Hardoi on 30.03.2005, alleging therein that
she is the resident of village Bargadiya, hamlet of Atiya
Majhigawan, police station Beniganj, Hardoi. Yesterday, in the
afternoon of 28.03.2005, her husband had gone to his maternal
village Akouhara to meet/greet ‘Holi’. She was not well,
therefore, she was lying at home. The son of her elder brother-
in-law, Ravindra son of Ram Prasad, was present with her. At
about 06:30 in the evening, upon hearing the cries of her
daughter (here-in-after referred to as ‘ victim ’) aged about 9
years coming from behind her house, she and Ravindra rushed
behind the house and saw that her neighbour, Rajendra son of
Rameshwar, was trying to commit a wrongful act with her
daughter by removing her shorts, who, on seeing them, fled
from the place of occurrence. Due to social shame, she
remained silent. Today, when her husband returned, she told
him everything. She has come to the police station along with
her husband and her daughter. Appropriate action may be taken.
(3) On the basis of the aforesaid written report (Ext. Ka.1), F.I.R.,
bearing Case Crime No. 112 of 2005, under Sections 376/511
I.P.C. was registered at Police Station Beniganj, district Hardoi
on 30.03.2005 at 02:30 P.M. against accused Rajendra.
(4) The investigation of the case was conducted by S.I. Raj
Bahadur Singh on 03.03.2005. He, after inspecting the place of
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occurrence on the pointing out of the complainant Rooprani,
prepared the site-plan (Ext. Ka.7) and recorded the statement of
complainant on 30.03.2005 and on the same day, he arrested the
accused/appellant.
(5) The medical examination of the victim was performed on
30.03.2005 at 06:00 P.M. at District Hospital, Hardoi by Dr.
Nisha Srivastava (P.W.4), who found that height of the victim
was 128 cm; weight was 20 Kg; teeth were 12/12; she was
average built; axillary hair not present; breast not developed
and there was no mark of injury on any part of the body. On
examination of private parts of the victim, doctor noted that
pubic hair not present on private parts and P/V Hymen torn at 6
O’clock position margins red and inflammed. Slight oozing
vagina admitting 1 finger with pain .
(6)
After examining the victim, Dr. Nisha Srivastava took her
vaginal smear and sent it to Pathological Department,
Balrampur Hospital for ascertaining the presence of
spermatozoa and also the victim was sent to X-ray Department,
District Hospital, Hardoi for x-ray of right wrist joint (all carpal
bones) for determination of age.
(7) On reference, the x-ray of the victim was conducted by Dr. I.K.
Srivastava (P.W.5) at District Hospital, Hardoi on 01.04.2005,
who found that only seven carpal bone has appeared, pisiform
not appeared Epiphysis of lower end of radius and ulna and
st
base of 1 meta carpal has appeared but not fused.
(8) Based on the Vaginal Smear Report No. 151 dated 23.04.2005
done by Senior Pathologist, Balrampur Hospital, Lucknow that
no sperm smear and gonococci are not seen as well as aforesaid
x-ray report, Dr. Nisha Srivastava had prepared supplementary
report of the victim on 05.05.20005, wherein she, after
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examining the Medical Report and vaginal smear report, opined
that allegation of intercourse might have been done and
according to physical appearance and x-ray report, age of
victim is below 12 years.
(9) The Investigating Officer S.I. Raj Bahadur Singh, recorded the
statement of victim on 05.04.2005 and after collecting the
incriminating material and completion of the investigation,
submitted the charge-sheet (Ext. Ka. 8) against the accused
Rajendra under Sections 376, 511 I.P.C. on 05.05.2005.
(10) The Additional Chief Judicial Magistrate, Court No. 2, Hardoi
took cognizance of the aforesaid charge-sheet and committed
the case to the Sessions Court on 04.06.2005, wherein the case
was registered as Sessions Trial No. 485 of 2005. The
Additional Sessions Judge, Court No.4, Hardoi, had framed
charges against the accused Rajendra under Sections 376/511
I.P.C. on 15.07.2005, which was denied by the accused and
claimed to be tried. Thereafter, the charge was amended to
Section 376 I.P.C. on 06.09.2005, which too was denied by the
accused and claimed to be tried.
(11) In order to prove its case, the prosecution examined seven
witnesses, who are as under :-
P.W.1 Victim
P.W.2-Rooprani complainant/mother of the victim
P.W.3-H.M. Krishna Pal Singh Prepared the check F.I.R. on the basis
of written report of the complainant
P.W.4-Dr. Nisha Srivastava Conducted the medical examination of
the victim and proved the medical
examination reports
P.W.5-Dr. I.K. Srivastava Conducted the x-ray and proved its
report
P.W.6-Ravindra Nephew of complainant/hostile witness
P.W.7-SSI Raj Bahadur Singh Investigating Officer
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(12) Apart from the aforesaid witnesses, the prosecution placed on
record the documentary evidence and proved it, which are as
under :-
Ext. Ka. 1 Written Report
Ext. Ka. 2 Check F.I.R.
Ext. Ka. 3 Copy of Rapat No. 22 (time 14:30
hours dated 30.03.2005)
Ext. Ka.4 Medical Examination Report of victim
prepared by Dr. Nisha Srivastava
Ext. Ka. 5 Supplementary Medical Examination
Report prepared by Dr. Nisha
Srivastava
Ext. Ka. 6 X-ray report prepared by Dr. I.K.
Srivastava
Ext. Ka.7 Site plan
Ext. Ka. 8 charge-sheet
(13) The prosecution has also produced material exhibit i.e. x-ray of
the victim as material Exhibit 1.
(14) After completion of evidence of prosecution, the statement of
the accused Rajendra was recorded under Section 313 of
Cr.P.C., wherein he denied the prosecution story as false and
concocted and stated that he has been implicated in the case due
to enmity. He further stated that goat of brother-in-law of the
complainant, namely, Lallaram was stolen, for which Lallram
had made suspicion on him and on his asking, the complainant
has falsely been implicated him. The defence has not led any
documentary or oral evidence in support of his defence.
(15) After hearing learned Counsel for the parties and considering
the evidence and material on record, the learned trial Court
convicted and sentenced the accused/appellant Rajendra by
means of the impugned judgment and order dated 28.04.2006 in
the manner as stated in paragraph-1 here-in-above.
Consequently, the convict/appellant, Rajendra, has preferred
the instant appeal.
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ARGUMENTS
(16) Heard Shri Avikshit Mishra, learned Amicus Curiae for the
appellant and learned A.G.A. for the State.
(17) The learned Amicus Curiae appearing on behalf of the appellant
submitted that the impugned judgment and order has been
passed without considering the evidence and material available
on record appropriately. He submitted that the FIR was lodged
after delay of two days from the date of the alleged incident and
the prosecution has failed to given satisfactory explanation for
such delay and it has been lodged after consultation with
embellishment, which is apparent from evidence of P.W.2. He
next submitted that there are material contradictions in the
statements of P.W.1 (the victim) and P.W.2, who is the mother
of the victim, which goes to the root of the prosecution case and
render it unreliable. He further submitted that the alleged eye
witness, P.W.6–Ravindra, who is the cousin brother of the
victim (P.W.1) and nephew of P.W.2, has not supported the
prosecution case and turned hostile, which creates serious doubt
on story.
(18) Learned Amicus Curiae for the appellant next submitted that the
place of occurrence could not be established by the prosecution
beyond reasonable doubt, therefore, it is doubtful. He next
submitted that the medical evidence also does not support the
prosecution case, therefore, prosecution case renders unreliable.
However, learned trial Court failed to consider it and passed the
impugned judgment and order on the basis of surmises and
conjectures in an illegal manner without considering the lacunas
in prosecution case and aforesaid, therefore, it was neither
warranted in law nor on facts. Thus, it is liable to be set-aside
and the appellant is liable to be acquitted.
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(19) Per contra , learned A.G.A. opposed the submissions of the
learned Amicus Curiae for the appellant and while supporting
the impugned judgment and order, submitted that it has been
passed after due appreciation of the evidence and material
available on record and does not suffer from any illegality or
infirmity. According to learned A.G.A., delay of two days in
lodging the F.I.R. has been satisfactorily explained by the
prosecution, which is natural and plausible in the facts and
circumstances of the case. Moreso, mere delay in lodging the
FIR is not fatal to the prosecution case, particularly in offences
of such nature where hesitation in approaching the authorities is
common. Thus, the contentions in this regard are not
sustainable. He further submitted that the alleged contradictions
in the statements of P.W.1 (the victim) and complainant (P.W.2-
Rooprani) are minor in nature and do not go to the root of the
prosecution case. He submitted that such discrepancies are
bound to occur due to normal errors of observation, memory,
lapse of time and village lady, which does not affect the core of
the prosecution story. According to learned A.G.A., the
testimony of the victim (P.W.1) is consistent and trustworthy on
material particulars and inspires confidence and conviction
could have been authored only on it. He further submitted that
the mere fact that P.W.6-Ravindra has turned hostile does not
demolish the entire prosecution case, especially when the
testimony of the victim (P.W.1) is cogent, consistent and
reliable.
(20) Learned A.G.A. next submitted that the place of occurrence has
been duly established from the evidence available on record and
there is no ambiguity in it. He submitted that the testimony of
P.W.1 (the victim) clearly describes the place of occurrence and
the same stands corroborated by the evidence of complainant
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(P.W.2) and other material brought on record. He further
submitted that the medical evidence on record fully supports the
prosecution case and there is no inconsistency between the
medical opinion and the ocular version of the prosecution
witnesses. Even otherwise, minor variations, if any, between
medical and ocular evidence are natural and do not affect the
core of the prosecution story. According to learned A.G.A., the
medical report cannot be read in isolation and has to be
appreciated in conjunction with the testimony of the victim
(P.W.1), which is consistent, reliable, and duly corroborated by
other evidence on record. Thus, submission is that the argument
of learned Amicus Curiae in this regard is not sustainable.
There is no illegality, error or perversity in the impugned
judgment and order and the learned trial Court has rightly
convicted the appellant after considering the evidence and
material on record and dealing it appropriately. The appeal has
been filed on misconceived and baseless ground, which lacks
merit and liable to be dismissed.
ANALYSIS
(21) We have heard learned Counsel for the parties and gone through
the records as well as the impugned judgment and order passed
by the learned trial Court.
(22) The first question we have to consider is the impact of delay of
nearly two days in lodging the F.I.R. The learned trial Court, in
the impugned judgment, has relied upon the judgment of
Hon’ble Supreme Court rendered in the cases of Vidyadharan
vs State Of Kerala ; AIR 2004 SC 536, Amar Singh vs.
Balwinder Singh and Others; AIR 2003 SC 1164 and Balram
Singh Versus State of Punjab; AIR 2003 SC 2213. In
Vidyadharan vs. State of Kerala (supra) , Hon’ble Supreme
Court has held that even if there is delay in lodging first
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information report, that cannot be a ground to discredit the
evidence of victim. The relevant paragraph-9 is extracted
below :-
“9. …... It is seen that though there was some delay in
lodging the FIR, it is but natural in a tradition-bound society
to avoid embarrassment, which is inevitable when the
reputation of a woman is concerned. Delay in every case
cannot be a ground to arouse suspicion. It can only be so
when the delay is unexplained.…... It is not that on
account of enmity false implications are made. It would,
however, be unusual in a conservative society that a
woman would be used as a pawn to wreak vengeance.
When a plea is taken of false implication, courts have a
duty to make deeper scrutiny of the evidence and decide
the acceptability or otherwise of the accusations. In the
instant case, both the trial court and the High Court have
done that. There is no scope for taking a different view."
(23) Similarly, in the case of Amar Singh vs. Balwinder Singh and
others (supra) , Hon’ble Supreme Court has held that there is
no hard and fast rule that any delay in lodging the FIR would
automatically render the prosecution case doubtful. It depends
upon facts and circumstances of each case as to whether there
has been any such delay in lodging the FIR, which may cast
doubt about the veracity of the prosecution case and for this a
host of circumstances like the condition of the first informant,
the nature of injuries sustained, the number of victims, the
efforts made to provide medical aid to them, the distance of the
hospital and the police station etc. have to be taken into
consideration. There is no mathematical formula by which an
inference may be drawn either way merely on account of delay
in lodging of the FIR. In the case of Balram Singh Versus
State of Punjab (supra) , Hon’ble Supreme Court has held that
if the ocular evidence adduced by the prosecution is worthy of
acceptance, the element of delay in registering a complaint or
sending the same to the jurisdictional Magistrate by itself would
not in any manner weaken the prosecution case .
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(24) It will also be apposite to refer the decision of the Hon’ble
Supreme Court rendered in the case of Tulshidas Kanolkar v.
State of Goa; 2003 (8) SCC 590, wherein rape of a girl was
committed, whose mental ability was undeveloped, considering
the same, the Hon’ble Supreme Court in regard to delay in
F.I.R., has held as under :-
“5.……………In any event, delay per se is not a mitigating
circumstance for the accused when accusations of rape
are involved. Delay in lodging the first information report
cannot be used as a ritualistic formula for discarding
prosecution case and doubting its authenticity. It only puts
the court on guard to search for and consider if any
explanation has been offered for the delay. Once it is
offered, the Court is to only see whether it is satisfactory or
not. In a case if the prosecution fails to satisfactorily
explain the delay and there is possibility of embellishment
or exaggeration in the prosecution version on account of
such delay, it is a relevant factor. On the other hand,
satisfactory explanation of the delay is weighty enough to
reject the plea of false implication or vulnerability of
prosecution case. As the factual scenario shows, the
victim was totally unaware of the catastrophe which had
befallen her. That being so, the mere delay in lodging of
the first information report does not in any way render
prosecution version brittle.”
(25) In the backdrop of the aforesaid principles, the question of
delay in lodging the F.I.R. is to be examined in the facts and
circumstances of the present case. As per prosecution, the
alleged incident occurred on 28.03.2005 at 06:30 in the
evening, whereas F.I.R. was lodged on 30.03.2005 at 02:30
p.m. at police station Beniganj, district Hardoi. Thus, there
was a delay of nearly 02 (two) days in lodging the FIR. The
contents of the written report (Exhibit Ka-1) contain the
statement of complainant (P.W.2 Smt. Ruprani) that due to
social shame, she remained silent and when her husband came,
she narrated all the facts to him, whereupon she, her husband
and her daughter (victim) went to the police station and lodged
the report. It is also mentioned in the written report (Exhibit
Ka-1) that at the time of the incident, husband of the
complainant had gone to his maternal home for greeting Holi.
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The victim (P.W.1) was subjected to rape and her age as
mentioned in the written report, was only 9 years and the
medical evidence also shows that she was below 12 years of
age. It was, thus, obvious for the complainant to wait for
husband as it has not been shown that any else major member
was at home, to whom she could have told it. Generally, every
person first tries to ensure that such a matter does not spread in
society, particularly unless he/she decides to go for an action,
looking to the future of minor and social stigma. In the instant
case, when the husband of the complainant was away from
home, it is probable that she would wait for her husband’s
return. The victim, who appeared as P.W.1, has also stated that
her father had gone in relation to greet on ‘Holi’. There is no
cross-examination from P.W.1 and P.W.2 on this point. Learned
trial Court, after considering the evidence and material on
record, has recorded a finding that the instant case is of rape
with a 9 year old girl and in such mater any person would lodge
F.I.R., only after thinking over a lot, thus, sufficient explanation
of delay is on record. This Court is in agreement with the
finding recorded by learned trial Court.
(26) Highlighting the evidence of complainant (P.W.2-Rooprani), in
cross-examination that “
eS fjiksVZ blfy, ugh fd Fkh igys lykg dj yks fQj
fjiksVZ dh tkos tc lykg gks x;h rc EkS fjiksVZ djus Fkkuk x;hA lykg ;gh cuh dh fjiksVZ
jktsUnz ds uke djuh gSA ”, learned Amicus Curiae for the appellant
argued that it is apparent that the F.I.R. was lodged after
consultation and deciding to lodge F.I.R. against the appellant.
The contention of learned Counsel for the appellant is
misconceived and not tenable for the reason that the
complainant, who is a rustic village lady, waited for her
husband to return and after return of her husband, she told him
about the incident, whereupon they decided to lodge F.I.R.
against the convict/appellant and accordingly, it was lodged.
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There is no further cross-examination on the point. Thus, her
evidence on this issue is quite natural as the pride and future of
their minor daughter was involved. It does not in any manner
indicates that consultation was made with the police for lodging
false report against the accused/appellant. P.W.2-Rooprani,
however, deposed in her statement that when she reached the
police station, the Station House Officer called a person and
asked him to write a report, which does not mean that the
Station House Officer got a false report written. It only
indicates that the Station House Officer called a person and the
complainant got the report written through him as per what she
stated. Furthermore, the defense has failed to show as to why
the police would falsely implicate him by lodging a false report
unless there is some enmity or motive behind it. There is no
evidence of any prior enmity between the accused and the
police personnel. At least the same has not been shown.
Learned trial Court has also recorded a finding that there is no
criminal history of accused, nor he has any enmity with any
policeman, therefore, police personnel would have involved in
lodging the false F.I.R. against him is not believable. Nothing
contrary could be shown by learned Counsel for the appellant,
on account of which a contrary view is possible on this issue.
Thus, this Court does not find any illegality or error in it and
there is no reason to disbelieve the version of F.I.R. and the
prosecution has satisfactorily explained the delay in lodging the
F.I.R.
(27) The next argument advanced by learned Amicus Curiae for the
appellant was that there is material contradictions in the
evidence of P.W.1-victim and P.W.2-Rooprani and an alleged
eye-witness Ravindra (P.W.6) has not supported the prosecution
case, which itself lends the prosecution case doubtful in as
much as the presence of complainant (P.W.2) at the place of
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occurrence doubtful, therefore, on the basis of sole testimony of
child witness (victim, P.W.1) only, learned trial Court erred in
convicting the appellant.
(28) To consider the argument of learned Amicus Curiae for the
appellant, firstly we will consider the evidence of the victim,
who appeared as PW.1. The victim was a minor, below 12 years
of age. P.W.5, Dr. I.K. Srivastava, who conducted the x-ray of
P.W.1 (victim) has stated in cross-examination that age of
injured (P.W.1) could not be more than 11 years and there may
be a year’s difference on either side. Thus, first it is to be seen
as to whether she was competent to depose before the Court of
law and as to how her evidence was required to be considered.
Section 118 of the Indian Evidence Act, 1872 provides that all
persons shall be competent to testify unless the Court considers
that they are prevented from understanding the questions put to
them or from giving rational answers to those questions by
tender years etc.
(29) Section 118 of the Indian Evidence Act, 1872 is extracted here-
in-below :-
“ 118. Who may testify.— All persons shall be competent to
testify unless the Court considers that they are prevented
from understanding the questions put to them, or from
giving rational answers to those questions, by tender
years, extreme old age, disease, whether of body or mind,
or any other cause of the same kind.”
(30)
In view of above, a child witness is not prevented from
deposing before the Court of law unless he/she is prevented
from understanding the questions put to him/her. Thus, it casts a
duty upon the Court to first examine the witness so as to satisfy
that the witness is capable of understanding the questions put to
him/her and giving rational answers to those questions. The
Hon’ble Supreme Court elaborately discussed as to how the
testimony of a child witness should be looked into and
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appreciated in the case of State of Madhya Pradesh Vs
Balveer Singh; (2025) 8 SCC 545, wherein the Hon’ble
Supreme Court, placing reliance on the cases of Dattu Ramrao
Sakhare v. State of Maharashtra ; (1997) 5 SCC 341 ,
Pradeep v. State of Haryana ; (2023) 19 SCC 221, Ratansinh
Dalsukhbhai Nayak v. State of Gujarat ; (2004) 1 SCC 64 ,
Panchhi v. State of U.P. ; (1998) 7 SCC 177 , Suryanarayana
v. State of Karnataka; (2001) 9 SCC 129, Arbind Singh v.
State of Bihar ; 1995 Supp (4) SCC 416, Digamber Vaishnav
v. State of Chhattisgarh; (2019) 4 SCC 522, State of M.P v.
Ramesh; (2011) 4 SCC 786 , has observed that
“43. From the above exposition of law, it is clear that the
evidence of a child witness for all purposes is deemed to be
on the same footing as any other witness as long as the child
is found to be competent to testify. The only precaution which
the court should take while assessing the evidence of a child
witness is that such witness must be a reliable one due to the
susceptibility of children by their falling prey to tutoring.
However, this in no manner means that the evidence of a
child must be rejected outrightly at the slightest of
discrepancy, rather what is required is that the same is
evaluated with great circumspection. While appreciating the
testimony of a child witness the courts are required to assess
whether the evidence of such witness is its voluntary
expression and not borne out of the influence of others and
whether the testimony inspires confidence. At the same time,
one must be mindful that there is no rule requiring
corroboration to the testimony of a child witness before any
reliance is placed on it. The insistence of corroboration is only
a measure of caution and prudence that the courts may
exercise if deemed necessary in the peculiar facts and
circumstances of the case.”
(31) The Hon’ble Supreme Court, in State of Madhya Pradesh Vs
Balveer Singh (supra) , summarized the principles pertaining to
the appreciation of evidence of a child witness from Para 67.1
to para 67.12 as under :-
“ 67.1. The Evidence Act does not prescribe any minimum age
for a witness, and as such a child witness is a competent
witness and his or her evidence and cannot be rejected
outrightly.
67.2. As per Section 118 of the Evidence Act, before the
evidence of the child witness is recorded, a preliminary
examination must be conducted by the Trial Court to ascertain if
the child-witness is capable of understanding sanctity of giving
evidence and the import of the questions that are being put to
him.
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67.3. Before the evidence of the child witness is recorded, the
Trial Court must record its opinion and satisfaction that the child
witness understands the duty of speaking the truth and must
clearly state why he is of such opinion.
67.4. The questions put to the child in the course of the
preliminary examination and the demeanour of the child and
their ability to respond to questions coherently and rationally
must be recorded by the Trial Court. The correctness of the
opinion formed by the Trial Court as to why it is satisfied that the
child witness was capable of giving evidence may be gone into
by the appellate court by either scrutinizing the preliminary
examination conducted by the Trial Court, or from the testimony
of the child witness or the demeanour of the child during the
deposition and cross-examination as recorded by the trial court.
67.5. The testimony of a child witness who is found to be
competent to depose i.e., capable of understanding the
questions put to it and able to give coherent and rational
answers would be admissible in evidence.
67.6. The Trial Court must also record the demeanour of the
child witness during the course of its deposition and cross-
examination and whether the evidence of such child witness is
his voluntary expression and not borne out of the influence of
others.
67.7. There is no requirement or condition that the evidence of a
child witness must be corroborated before it can be considered.
A child witness who exhibits the demeanour of any other
competent witness and whose evidence inspires confidence can
be relied upon without any need for corroboration and can form
the sole basis for conviction. If the evidence of the child explains
the relevant events of the crime without improvements or
embellishments, the same does not require any corroboration
whatsoever.
67.8. Corroboration of the evidence of the child witness may be
insisted upon by the courts as measure of caution and prudence
where the evidence of the child is found to be either tutored or
riddled with material discrepancies or contradictions. There is no
hard and fast rule when such corroboration would be desirous or
required, and would depend upon the peculiar facts and
circumstances of each case.
67.9. Child witnesses are considered as dangerous witnesses as
they are pliable and liable to be influenced easily, shaped and
moulded and as such the courts must rule out the possibility of
tutoring. If the courts after a careful scrutiny, find that there is
neither any tutoring nor any attempt to use the child witness for
ulterior purposes by the prosecution, then the courts must rely
on the confidence-inspiring testimony of such a witness in
determining the guilt or innocence of the accused. In the
absence of any allegations by the accused in this regard, an
inference as to whether the child has been tutored or not, can be
drawn from the contents of his deposition.
67.10. The evidence of a child witness is considered tutored if
their testimony is shaped or influenced at the instance of
someone else or is otherwise fabricated. Where there has been
any tutoring of a witness, the same may possibly produce two
broad effects in their testimony; (i) improvisation or (ii)
fabrication.
(i) Improvisation in testimony whereby facts have been altered or
new details are added inconsistent with the version of events not
previously stated must be eradicated by first confronting the
witness with that part of its previous statement that omits or
contradicts the improvisation by bringing it to its notice and
giving the witness an opportunity to either admit or deny the
omission or contradiction. If such omission or contradiction is
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Criminal Appeal No. 956 of 2006;
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Page No.16 of 31
admitted there is no further need to prove the contradiction. If
the witness denies the omission or contradiction the same has to
be proved in the deposition of the investigating officer by proving
that part of police statement of the witness in question. Only
thereafter, may the improvisation be discarded from evidence or
such omission or contradiction be relied upon as evidence in
terms of Section 11 of Evidence Act.
(ii) Whereas the evidence of a child witness which is alleged to
be doctored or tutored in toto, then such evidence may be
discarded as unreliable only if the presence of the following two
factors have to be established being as under: -
Opportunity of Tutoring of the Child Witness in
•
question- whereby certain foundational facts suggesting
ordemonstrating the probability that a part of the testimony of the
witness might have been tutored have to be established. This
may be done either by showing that there was a delay in
recording the statement of such witness or that the presence of
such witness was doubtful, or by imputing any motive on the part
of such witness to depose falsely, or the susceptibility of such
witness in falling prey to tutoring. However, a mere bald
assertion that there is a possibility of the witness in question
being tutored is not sufficient.
Reasonable likelihood of tutoring- wherein the
•
foundational facts suggesting a possibility of tutoring as
established have to be further proven or cogently substantiated.
This may be done by leading evidence to prove a strong and
palpable motive to depose falsely, or by establishing that the
delay in recording the statement is not only unexplained but
indicative and suggestive of some unfair practice or by proving
that the witness fell prey to tutoring and was influenced by
someone else either by cross-examining such witness at length
that leads to either material discrepancies or contradictions, or
exposes a doubtful demeanour of such witness rife with sterile
repetition and confidence lacking testimony, or through such
degree of incompatibility of the version of the witness with the
other material on record and attending circumstances that
negates their presence as unnatural.
67.11. Merely because a child witness is found to be repeating
certain parts of what somebody asked her to say is no reason to
discard her testimony as tutored, if it is found that what is in
substance being deposed by the child witness is something that
he or she had actually witnessed. A child witness who has
withstood his or her cross-examination at length and able to
describe the scenario implicating the accused in detail as the
author of crime, then minor discrepancies or parts of coached
deposition that have crept in will not by itself affect the credibility
of such child witness.
67.12. Part of the statement of a child witness, even if tutored,
can be relied upon, if the tutored part can be separated from the
untutored part, in case such remaining untutored or untainted
part inspires confidence. The untutored part of the evidence of
the child witness can be believed and taken into consideration or
the purpose of corroboration as in the case of a hostile witness.”
(32) Adverting to the facts of the instant case, this Court finds that
trial Court, in order to testify as to whether the child witness
P.W.1 (victim) is capable of understanding and answering the
questions rationally, first put certain questions to her. The trial
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Page No.17 of 31
Court asked as to whether she studies, she replied that she
studies in Class-5. In regard to the question as to in which
direction the sun rises, she stated that she do no know. She also
in regard to the question as to whether she knows that to speak
lie is sin, she stated that she does not know. However, she
further, on examination, stated that we are three sisters and two
brothers. Her three brothers and sisters are studying in School.
She will speak truth today. The man should speak truth. The sun
rises in the morning. Thereafter, the trial Court recorded its
observations that the witness is witless ( ) and on being
नासमझ
asked, unable to give answer of the questions in one go and on
repeated impressing upon answers with difficulty. Thus, the
trial Court’s observation indicates that the witness is capable of
answering the questions, but with difficulty. Thus, after
satisfying itself about the capability of child witness to answer
the questions put to her, the trial Court proceeded to record her
evidence in accordance with law. Thereafter, she was examined.
(33) In the examination-in-chief, P.W.1 (victim) deposed that she
knows the accused Rajendra, who is present in Court. He is a
resident of her village. About 6 months ago, it was 06:00 in the
evening. She had gone for call of nature behind her house. Her
mother was lying inside the house. Her father had gone to greet
‘Holi in his relation. Accused Rajendra came near her and took
her lifting under eucalyptus trees and took off her underwear
and committed wrongful act. When she cried, her mother
arrived. Then, accused left her and ran away and no one else
had come. Her mother lifted her and brought home. When her
father returned after greeting Holi, her mother had gone to
police station. Upon a question put separately by the Court, her
explanation was that the accused also became naked and laying
down on her, he rubbed his penis on her vagina and thereafter
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Criminal Appeal No. 956 of 2006;
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Page No.18 of 31
pushed off, upon which she cried out. What emerges from the
aforesaid examination-in-chief of the victim (P.W.1) that she is
acquainted with the accused and proved presence of the accused
at the place of occurrence and she has satisfactorily explained
chronology of the incident. Her testimony establishes that the
accused took her to a secluded place under the eucalyptus trees,
removed her undergarments and not only subjected her to
sexual assault but committed rape also, and on her cry, her
mother immediately reached on the spot, whereupon the
accused fled away from the place of occurrence.
(34) In cross-examination, the victim; P.W.1 stated that the place of
occurrence is a eucalyptus grove. There are very big trees as
well as some small trees, where the land is uneven and there are
pits at places. In the evening, she had gone to defecate. It had
become a little dark. She sat in the same eucalyptus grove for
defecation. This grove is adjoining to the house of Munne. Due
to the darkness, she did not go farther and sat there for
defecation. She had gone for defecation by taking a plastic
container. As soon as she raised an alarm, the accused ran away.
The accused fled towards the north, passing through mango
grove. As soon as the accused ran away, her mother arrived
some time thereafter. She sustained injury in her private part.
There was no visible injury on the body. Her mother and her
elder aunt ( badi mummi ) have come along with her. Her mother
and elder aunt told her that whatever had happened to her, she
should state the truth in Court. She further, in cross-
examination, deposed that blood had stained on her clothes. The
Inspector (Daroga Ji) had not made any inquiry from her. She
had gone to the police station. The blood-stained clothes were
seen by the police personnel at the police station. She further
deposed that it is wrong to say that she is deposing against the
accused Rajendra on asking of her mother. It is also wrong to
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Criminal Appeal No. 956 of 2006;
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Page No.19 of 31
say that she is giving false evidence on telling of her mother. It
is also wrong that such incident would not have happened with
her. She further deposed that accused remained lying on her for
sometime.
(35) The aforesaid evidence of the victim shows that her testimony
is consistent on every material particulars, particularly with
regard to identity of the accused and the manner of occurrence.
Nothing material could be extracted in cross-examination, on
account of which, her testimony can be discarded. In State of
Madhya Pradesh Vs Balveer Singh (supra) , the Hon’ble
Supreme Court has held that the testimony of a child witness, if
found to be natural, consistent and free from tutoring, can be
relied upon and form the sole basis of conviction. The Hon’ble
Supreme Court, however, emphasised that such evidence must
be evaluated with caution and the Court must be satisfied that
the child possesses sufficient intelligence and understands the
duty to speak the truth. Applying the said principles to the facts
of the present case, it is evident that P.W.-1 has given a cogent
and consistent account of the occurrence not only with regard to
accused and incident, but with regard to the description of the
surroundings, including the uneven land, presence of pits, grove
and lanes, which lends assurance to her testimony. The so-
called contradictions pointed out by the defence pertain only to
peripheral details such as exact distances, directions and layout
of surrounding houses and lanes. In view of the dictum laid
down by the Hon’ble Supreme Court, such minor discrepancies
are bound to occur, particularly in the testimony of a child
witness and if the core of the prosecution case is in
corroboration, her testimony cannot be said to be unreliable.
(36) The defence has attempted to suggest that P.W.1 has been
tutored by her mother. However, P.W.1 has categorically denied
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Criminal Appeal No. 956 of 2006;
Rajendra Versus the State of U.P.
Page No.20 of 31
the said suggestion and nothing could be extracted in cross-
examination nor any material has been brought on record to
substantiate the plea of tutoring. On the contrary, her testimony
appears spontaneous and bears the ring of truth. Moreso, the
absence of visible external injuries on other parts of the body is
also not of such a nature as to discredit her version, particularly
when she has specifically deposed about injury to her private
part and presence of blood on her clothes. Even otherwise, it is
trite in law that if the ocular evidence is worthy of credence,
any discrepancy or contradiction in medical evidence is not
sufficient to belie the ocular evidence. In State of U.P. vs.
Naresh ; 2011 (4) SCC 324, it has been held that minor
contradictions regarding injuries do not discredit otherwise
reliable evidence.
(37) Thus, this Court is of the view that the testimony of P.W.-1 is
credible, trustworthy and free from material contradictions. The
minor inconsistencies highlighted by the defence are
insignificant and do not affect the substratum of the prosecution
case. Accordingly, the testimony of the victim (P.W.-1) is held
to be reliable and worthy of acceptance.
(38) The complainant, who is the mother of victim, has been
examined as P.W.2. She deposed that she knew the accused
Rajendra, who is present in Court. The incident is about six
months old. Her husband had gone to relatives for greeting
‘Holi’. She was not well. She was lying at home. Her children
and the son of her husband’s elder brother (jeth), Ravindra was
also lying there. It was 6:00–6:30 in the evening. Her daughter
(victim) had gone for defecation. She heard the cries of her
daughter (victim) from behind her house. On hearing the noise,
she and Ravindra rushed to the spot. Then, Rajendra ran away
leaving her daughter. She saw Rajendra running away. Her
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Page No.21 of 31
daughter told her that Rajendra had committed a wrongful act
with her. She further deposed that when her husband returned
from the relation, then, she went along with her husband and
daughter to the police station. Outside the police station, she, on
her dictation, got the written report ( ) written by one
तहरीर
person. Whatever she stated was written by him. It was read
over and explained to her and thereafter, she affixed her
signature on it. She proved her signature on the written report
(Ext. Ka.1). She handed over the written report to the Moharrir
(clerk) and the Moharrir registered her report. Her daughter was
medically examined and her X-ray was conducted at Hardoi
Hospital. The Investigating Officer (Daroga Ji) made inquiries
from her.
(39) In cross-examination, P.W.2 stated that her husband is Rajpal.
Lalaram and Ram Prasad are his brother. Ravindra, son of Ram
Prasad is a witness in this case. Rajpal and Lalaram frequently
visit to eat and drink with each other. The house of her husband
and his brothers is situated in close to each other. She further
deposed that goat of her husband’s elder brother (jeth),
Lalaram, had been stolen prior to this incident. One goat had
been stolen. The wife of Lalaram is her elder sister-in-law
(jethani). She does not know as to whether Lalaram had any
quarrel with the accused Rajendra on account of the theft of the
goat or not. She further deposed that it is incorrect to say that
she is concealing the fact of quarrel between Lalaram and
Rajendra. She further deposed that the eucalyptus grove was
planted by her husband about 5 years ago. There are also mango
trees in that grove. She further deposed that on the day of the
incident, she was suffering from fever. She had been having
fever for about 2–3 days prior to the incident. In the evening,
her husband’s elder brother (jeth) and her small children were
present. Her daughter had gone to defecate. On hearing her
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Criminal Appeal No. 956 of 2006;
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Page No.22 of 31
cries, Ravindra rushed and she also rushed. She saw Rajendra
running away towards the north. At that time, she was standing
on the bank of pond. The accused was at about 50 steps towards
north of her grove at that time. Her grove is about 100 steps
long north–south. In the entire field, eucalyptus trees are
planted. Adjacent to her grove, there is also a mango grove. Her
daughter was found near the house of her jeth Lalaram. The
door of Lalaram’s house is towards the east of her eucalyptus
grove, where several people from the neighbourhood were
present at that time, including her elder sister-in-law (jethani)
Seema. She did not have any conversation with those witnesses
nor did she tell them anything. Thereafter, she brought her
daughter and went to home. She did not have any conversation
with her daughter at that time. She further deposed that she did
not lodge the report as she wanted to consult first and lodge
report thereafter. When consultation was made, then, she went
to police station for lodging the report. Upon consultation,
opinion was formed that the report should be lodged against
Rajendra. Thereafter, she went to the police station at about
8:00 a.m. by tempo, which was at a distance of about 1½ kosh
from her village and reached there in about half an hour. At the
police station, police personnel and the Inspector (Daroga Ji)
were present, called the person who had written her report, on
which she put signature. She further deposed that from the
injuries sustained by her daughter, blood was oozing out. The
Inspector made inquiries from her on the same day, when the
report was written. Thereafter, no further inquiry was made
from her nor she met again. The back of her daughter was
scratched and the hand was also scratched at some places. Her
daughter was medically examined at Hardoi. Her daughter
showed all the injuries to the doctor. The blood-stained clothes
were taken to the police station as well as to the hospital and
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Criminal Appeal No. 956 of 2006;
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Page No.23 of 31
those clothes were shown to the Inspector and the Moharrir. She
further deposed that she had informed the Inspector that her
daughter had gone to defecate and if the same has not been
written in her statement by the Investigating Officer, she could
not tell the reason thereof. She further deposed that it is wrong
to say that she is giving false evidence. It is also wrong to say
that no such incident occurred as she is telling. It is also wrong
to say that due to village enmity or partybandi, she, in collusion
with her husband and Lalaram, got a false report written against
the accused. It is also wrong to say that no such incident took
place at the alleged place and time. It is also wrong to say that
she did not see the accused running away.
(40) What emerges from the evidence of P.W.2 is that she is the
mother of the victim and a natural witness to the immediate
aftermath of the incident. She has narrated the incident in
examination-in-chief and as to when she went and how to lodge
the F.I.R. and also proved the written report and as to how it
was written and medical examination of the victim. It further
transpires from her testimony that she noticed injuries on the
person of the victim and blood on her clothes. She has denied
the suggestion that the report was lodged falsely due to village
enmity or prior disputes. Thus, the testimony of P.W.-2, the
mother of the victim, lends corroboration to the version of
P.W.1 on material particulars, particularly with regard to the
immediate conduct, fleeing of the accused, the disclosure made
by the victim and lodging of the FIR. Nothing could be
extracted in cross-examination, which may create doubt about
veracity of the testimony. The minor discrepancies or
contradiction or delay in lodging F.I.R., which has sufficiently
been explained, does not materially affect the substratum of the
prosecution case. The emphasis of learned Amicus Curiae for
the appellant on consultation for F.I.R. in cross-examination to
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Criminal Appeal No. 956 of 2006;
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Page No.24 of 31
show concoction in prosecution case is totally misconceived for
the reason that the evidence is of a village lady, who is unaware
and unmindful of the effect of words in law, otherwise, her
contention was that family members formed opinion for
lodging F.I.R. against the accused, otherwise, it may cause a
social stigma on minor daughter, which may affect her future
also.
(41) In view of above and upon a close and comparative evaluation
of the testimonies of P.W.-1 (victim) and P.W.-2 (mother of the
victim), it is to be seen as to whether minor inconsistencies as
pointed out by learned Amicus Curiae for the appellant are
such, which may affect the substratum of the prosecution case.
(42) The Hon’ble Supreme Court, in the case of Leela Ram vs State
of Haryana; (1999) 9 SCC 525, observed as follows :-
“9. Be it noted that the High Court is within its jurisdiction being the first
appellate court to reappraise the evidence, but the discrepancies found
in the ocular account of two witnesses unless they are so vital, cannot
affect the credibility of the evidence of the witnesses. There are bound
to be some discrepancies between the narrations of different witnesses
when they speak on details, and unless the contradictions are of a
material dimension, the same should not be used to jettison the
evidence in its entirety. Incidentally, corroboration of evidence with
mathematical niceties cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason therefor should
not render the evidence of eyewitnesses unbelievable. Trivial
discrepancies ought not to obliterate an otherwise acceptable evidence.
In this context, reference may be made to the decision of this Court in
State of U.P. v M.K. Anthony [State of U.P. v M.K. Anthony, (1985) 1
SCC 505 : 1985 SCC (Cri) 105] . In para 10 of the Report, this Court
observed : (SCC pp. 514-15)
‘10. While appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole appears to have a
ring of truth. Once that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the witness and
whether the earlier evaluation of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial matters not touching
the core of the case, hypertechnical approach by taking sentences torn
out of context here or there from the evidence, attaching importance to
some technical error committed by the investigating officer not going to
the root of the matter would not ordinarily permit rejection of the
evidence as a whole. If the court before whom the witness gives
evidence had the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the appreciation of
evidence by the trial court and unless there are reasons weighty and
formidable it would not be proper to reject the evidence on the ground
of minor variations or infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in some details unrelated to the
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Criminal Appeal No. 956 of 2006;
Rajendra Versus the State of U.P.
Page No.25 of 31
main incident because power of observation, retention and reproduction
differ with individuals.’
10. In a very recent decision in Rammi v. State of M.P. [Rammi v. State
of M.P., (1999) 8 SCC 649 : 2000 SCC (Cri) 26] this Court observed :
(SCC p. 656, para 24)
‘24. When an eyewitness is examined at length it is quite possible for
him to make some discrepancies. No true witness can possibly escape
from making some discrepant details. Perhaps an untrue witness who is
well tutored can successfully make his testimony totally non-discrepant.
But courts should bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the credibility of his
version that the court is justified in jettisoning his evidence. But too
serious a view to be adopted on mere variations falling in the narration
of an incident (either as between the evidence of two witnesses or as
between two statements of the same witness) is an unrealistic approach
for judicial scrutiny.’
This Court further observed : (Rammi case [Rammi v. State of M.P.,
(1999) 8 SCC 649 : 2000 SCC (Cri) 26] , SCC pp. 656-57, paras 25-27)
‘25. It is a common practice in trial courts to make out contradictions
from the previous statement of a witness for confronting him during
cross-examination. Merely because there is inconsistency in evidence it
is not sufficient to impair the credit of the witness. No doubt Section 155
of the Evidence Act provides scope for impeaching the credit of a
witness by proof of an inconsistent former statement. But a reading of
the section would indicate that all inconsistent statements are not
sufficient to impeach the credit of the witness. The material portion of
the section is extracted below:
“ 155. Impeaching credit of witness .—The credit of a witness may be
impeached in the following ways by the adverse party, or, with the
consent of the court, by the party who calls him—
*(1)-(2)
(3) by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted;”
26. A former statement though seemingly inconsistent with the evidence
need not necessarily be sufficient to amount to contradiction. Only such
of the inconsistent statement which is liable to be “contradicted” would
affect the credit of the witness. Section 145 of the Evidence Act also
enables the cross-examiner to use any former statement of the witness,
but it cautions that if it is intended to “contradict” the witness the cross-
examiner is enjoined to comply with the formality prescribed therein.
Section 162 of the Code also permits the cross-examiner to use the
previous statement of the witness (recorded under Section 161 of the
Code) for the only limited purpose i.e. to “contradict” the witness.
27. To contradict a witness, therefore, must be to discredit the particular
version of the witness. Unless the former statement has the potency to
discredit the present statement, even if the latter is at variance with the
former to some extent it would not be helpful to contradict that witness
(vide Tahsildar Singh v. State of U.P. [Tahsildar Singh v. State of U.P.,
1959 SCC OnLine SC 17 : AIR 1959 SC 1012] ).”
(43) The Hon’ble Supreme Court has cautioned about attaching too
much importance on minor discrepancies in the evidence of the
witnesses in Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat; (1983) 3 SCC 217 as follows :-
“5. … We do not consider it appropriate or permissible to enter upon a
reappraisal or reappreciation of the evidence in the context of the minor
discrepancies painstakingly highlighted by the learned counsel for the
appellant. Overmuch importance cannot be attached to minor
discrepancies. The reasons are obvious:
‘(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is not as
if a video tape is replayed on the mental screen.
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Page No.26 of 31
(2) Ordinarily it so happens that a witness is overtaken by events. The
witness could not have anticipated the occurrence which so often has
an element of surprise. The mental faculties therefore cannot be
expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one
may notice, another may not. An object or movement might emboss its
image on one person's mind, whereas it might go unnoticed on the part
of another.
(4) By and large people cannot accurately recall a conversation and
reproduce the very words used by them or heard by them. They can
only recall the main purport of the conversation. It is unrealistic to
expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an
occurrence, usually, people make their estimates by guesswork on the
spur of the moment at the time of interrogation. And one cannot expect
people to make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals which varies from
person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the
sequence of events which takes place in rapid succession or in a short
time span. A witness is liable to get confused, or mixed up when
interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the
court atmosphere and the piercing cross-examination made by the
counsel and out of nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination on the spur of the
moment. The subconscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the occurrence
witnessed by him — perhaps it is a sort of a psychological defence
mechanism activated on the spur of the moment.’ ”
(44) Similarly, in the case of Appabhai v. State of Gujarat ; 1988
Supp SCC 241, the Hon’ble Supreme Court observed as
under :-
“13. … The court while appreciating the evidence must not attach
undue importance to minor discrepancies. The discrepancies which do
not shake the basic version of the prosecution case may be discarded.
The discrepancies which are due to normal errors of perception or
observation should not be given importance. The errors due to lapse of
memory may be given due allowance. The court by calling into aid its
vast experience of men and matters in different cases must evaluate
the entire material on record by excluding the exaggerated version
given by any witness. When a doubt arises in respect of certain facts
alleged by such witness, the proper course is to ignore that fact only
unless it goes into the root of the matter so as to demolish the entire
prosecution story. The witnesses nowadays go on adding
embellishments to their version perhaps for the fear of their testimony
being rejected by the court. The courts, however, should not disbelieve
the evidence of such witnesses altogether if they are otherwise
trustworthy. Jaganmohan Reddy, J. speaking for this Court
in Sohrab v. State of M.P. [Sohrab v. State of M.P., (1972) 3 SCC 751 :
1972 SCC (Cri) 819] observed : (SCC p. 756, para 8)
‘8. … This Court has held that falsus in uno, falsus in omnibus is not a
sound rule for the reason that hardly one comes across a witness
whose evidence does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishments. In most cases, the
witnesses when asked about details venture to give some answer, not
necessarily true or relevant for fear that their evidence may not be
accepted in respect of the main incident which they have witnessed but
that is not to say that their evidence as to the salient features of the
case after cautious scrutiny cannot be considered….’ ”
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Criminal Appeal No. 956 of 2006;
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Page No.27 of 31
(45) It is pertinent to note that the scene of crime was in a rural area
and the witnesses being rustic, their evidence has to be
appreciated in the light of the behavioural pattern in the rural
environment. In this regard, we may refer to the decision of
Hon’ble Supreme Court, in Shivaji Sahabrao Bobade v. State
of Maharashtra; (1973) 2 SCC 793, wherein it was held that :-
“8. Now to the facts. The scene of murder is rural, the witnesses to the
case are rustics and so their behavioural pattern and perceptive habits
have to be judged as such. The too sophisticated approaches familiar in
courts based on unreal assumptions about human conduct cannot
obviously be applied to those given to the lethargic ways of our villages.
When scanning the evidence of the various witnesses we have to
inform ourselves that variances on the fringes, discrepancies in details,
contradictions in narrations and embellishments in inessential parts
cannot militate against the veracity of the core of the testimony provided
there is the impress of truth and conformity to probability in the
substantial fabric of testimony delivered. The learned Sessions Judge
has at some length dissected the evidence, spun out contradictions and
unnatural conduct, and tested with precision the time and sequence of
the events connected with the crime, all on the touchstone of the
medical evidence and the post-mortem certificate. Certainly, the court
which has seen the witnesses depose, has a great advantage over the
appellate Judge who reads the recorded evidence in cold print, and
regard must be had to this advantage enjoyed by the trial Judge of
observing the demeanour and delivery, of reading the
straightforwardness and doubtful candour, rustic naiveté and clever
equivocation, manipulated conformity and ingenious inveracity of
persons who swear to the facts before him. Nevertheless, where a
Judge draws his conclusions not so much on the directness or dubiety
of the witness while on oath but upon general probabilities and on
expert evidence, the court of appeal is in as good a position to assess
or arrive at legitimate conclusions as the court of first instance. Nor can
we make a fetish of the trial Judge's psychic insight.”
(46) This Court is also of the view that while dealing with the
evidence of witnesses who are rustic, because of minor
inconsistencies, their evidence should not be ignored and
discarded on material points, if the core of prosecution case or
substratum of the prosecution case is not affected. It is apposite
to refer the following paragraphs of Prabhu Dayal v. State of
Rajasthan ; (2018) 8 SCC 127 by Hon’ble Supreme Court,
dealing with testimony of witnesses from rustic background :-
“18. It is a common phenomenon that the witnesses are rustic and can
develop a tendency to exaggerate. This, however, does not mean that
the entire testimony of such witnesses is falsehood. Minor
contradictions in the testimony of the witnesses are not fatal to the case
of the prosecution. This Court, in State of U.P. v. M.K. Anthony [State of
U.P. v. M.K. Anthony, (1985) 1 SCC 505 : 1985 SCC (Cri) 105] , held
that inconsistencies and discrepancies alone do not merit the rejection
of the evidence as a whole. It stated as follows : (SCC p. 514-15, para
10)
‘10. While appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole appears to have a
ring of truth. Once that impression is formed, it is undoubtedly
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Criminal Appeal No. 956 of 2006;
Rajendra Versus the State of U.P.
Page No.28 of 31
necessary for the court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the witness and
whether the earlier evaluation of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial matters not touching
the core of the case, hypertechnical approach by taking sentences torn
out of context here or there from the evidence, attaching importance to
some technical error committed by the investigating officer not going to
the root of the matter would not ordinarily permit rejection of the
evidence as a whole. If the court before whom the witness gives
evidence had the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the appreciation of
evidence by the trial court and unless there are reasons weighty and
formidable it would not be proper to reject the evidence on the ground
of minor variations or infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in some details unrelated to the
main incident because power of observation, retention and reproduction
differ with individuals. Cross-examination is an unequal duel between a
rustic and refined lawyer. Having examined the evidence of this witness,
a friend and well-wisher of the family carefully giving due weight to the
comments made by the learned counsel for the respondent and the
reasons assigned to by the High Court for rejecting his evidence
simultaneously keeping in view the appreciation of the evidence of this
witness by the trial court, we have no hesitation in holding that the High
Court was in error in rejecting the testimony of witness Nair whose
evidence appears to us trustworthy and credible.’
*19.
20. The Court can separate the truth from the false statements in the
witnesses' testimony. In Leela Ram v. State of Haryana [Leela
Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222] ,
this Court held as follows : (SCC p. 534, para 12)
‘12. It is indeed necessary to note that one hardly comes across a
witness whose evidence does not contain some exaggeration or
embellishment — sometimes there could even be a deliberate attempt
to offer embellishment and sometimes in their over anxiety they may
give a slightly exaggerated account. The court can sift the chaff from
the grain and find out the truth from the testimony of the witnesses.
Total repulsion of the evidence is unnecessary. The evidence is to be
considered from the point of view of trustworthiness. If this element is
satisfied, it ought to inspire confidence in the mind of the court to accept
the stated evidence though not however in the absence of the same.’
21. Moreover, it is not necessary that the entire testimony of a witness
be disregarded because one portion of such testimony is false. This
Court observed thus in Gangadhar Behera v. State of
Orissa [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 : 2003
SCC (Cri) 32] : (SCC p. 392, para 15)
‘15. To the same effect is the decision in State of Punjab v. Jagir
Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC
(Cri) 886] and Lehna v. State of Haryana [Lehna v. State of Haryana,
(2002) 3 SCC 76 : 2002 SCC (Cri) 526] . Stress was laid by the
appellant-accused on the non-acceptance of evidence tendered by
some witnesses to contend about desirability to throw out the entire
prosecution case. In essence prayer is to apply the principle of falsus in
uno, falsus in omnibus (false in one thing, false in everything). This plea
is clearly untenable. Even if a major portion of the evidence is found to
be deficient, in case residue is sufficient to prove guilt of an accused,
notwithstanding acquittal of a number of other co-accused persons, his
conviction can be maintained. It is the duty of the court to separate the
grain from the chaff. Where chaff can be separated from the grain, it
would be open to the court to convict an accused notwithstanding the
fact that evidence has been found to be deficient to prove guilt of other
accused persons. Falsity of a particular material witness or material
particular would not ruin it from the beginning to end. The maxim falsus
in uno, falsus in omnibus has no application in India and the witnesses
cannot be branded as liars. The maxim falsus in uno, falsus in
omnibus has not received general acceptance nor has this maxim come
to occupy the status of rule of law. It is merely a rule of caution. All that
it amounts to, is that in such cases testimony may be disregarded, and
not that it must be disregarded.’ ”
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Criminal Appeal No. 956 of 2006;
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Page No.29 of 31
(47) Keeping the aforesaid principles of law laid down by Hon’ble
Supreme Court in mind, the evidence of the victim (P.W.1) and
mother of the victim (P.W.2) are to be seen and considered. The
trial Court has meticulously examined the evidence of P.W.1
and P.W.2 before coming to the conclusion that their evidence is
reliable and credible.
(48) It is also to keep in mind that P.W.-1 is a child witness, and
some variation in narration is natural. In State of M.P. v.
Balveer Singh (supra) , the Hon’ble Supreme Court has held
that the testimony of a child witness, if found natural and
trustworthy, can be relied upon notwithstanding minor
inconsistencies. Even otherwise, minor discrepancies in
evidence of prosecutrix are bound to occur on account of
trauma faced by her. In State of Punjab Vs. Gurmit Singh ;
1996 (2) SCC 384, it has been held that minor inconsistencies
in the testimony of the prosecutrix are not fatal when the overall
version inspires confidence.
(49) In the present case also, both P.W.-1 and P.W.-2 are consistent
on the core aspects. Contradictions highlighted by the defence
pertain only to peripheral matters and do not shake the
foundation of the prosecution case. Significantly, the medical
evidence also lends assurance to the prosecution case. P.W.4,
Dr. Nisha Srivastava, who examined the victim (P.W.1), has
opined that in all probabilities, the intercourse might have been
done with the victim. In cross-examination, she (P.W.4)
deposed that parts of vagina were slight bloody. In a query from
the trial Court, she deposed that hymen may torn by cycling or
playing, but injuries would not come in the manner sustained by
the injured. Though the opinion is expressed in cautious terms,
however, it does not negate the prosecution case and is
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Criminal Appeal No. 956 of 2006;
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Page No.30 of 31
consistent with the version of the victim. It is well settled that
medical evidence is corroborative in nature and where the
ocular testimony is clear and reliable, minor inconsistencies
with medical opinion do not override such evidence. Thus,
medical evidence also supports the prosecution case. Even
otherwise, the presence of injuries is not a sine qua non for
determining as to whether the offence of rape has been
committed or not. It has been observed by the Hon’ble
Supreme Court in Lalliram & Anr. V State of M.P. , (2008) 10
SCC 69 that injury is not a sine qua non for deciding whether
rape has been committed but it has to be decided on the factual
matrix of each case. Thus, the contention of learned Amicus
Curiae for the appellant that the medical evidence does not
support the prosecution case as no external injuries were found,
is misconceived and not tenable. In view of the aforesaid
discussion, declaration of hostile of P.W.6-Ravindra has no
bearing on the case. Even otherwise, normally relatives avoid to
give evidence in such cases, particularly when they are known
to each other.
(50) In view of the aforesaid discussion and the law laid down by
the Hon’ble Supreme Court, this Court is of the view that the
contradictions in the statements of P.W.-1 and P.W.-2 are minor,
natural, inconsequential and without any embellishment, which
do not create any reasonable doubt in the prosecution case. The
evidence of both the witnesses remains reliable, consistent with
the prosecution case and among themselves and trustworthy.
We are in full agreement with the view taken by the learned
trial Court, which has appropriately appreciated the evidence on
record and rightly held that such minor contradictions do not
affect the prosecution case.
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Criminal Appeal No. 956 of 2006;
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Page No.31 of 31
(51) The other official formal witnesses have also proved the
procedure followed by them and nothing could be extracted
from them, which may create any doubt about their testimony
and affect in any manner the prosecution case.
(52) In view of the clear, cogent, and reliable testimony of the victim
(P.W.1), duly supported by medical and other corroborative
evidence on record, we are of the view that the prosecution has
successfully proved the guilt of the appellant beyond all
reasonable doubt for the offence punishable under Section 376
I.P.C. The learned Trial Court has rightly appreciated the
evidence and material on records in its proper perspective and
has arrived at a well-reasoned finding for conviction. The view
taken by the Trial Court is neither perverse nor suffers from any
illegality or error warranting interference by this Court. Thus,
the appeal is liable to be dismissed.
(53) The appeal is hereby dismissed . The conviction of the appellant
under Section 376 I.P.C. as recorded by the learned Trial Court
is upheld. The sentence awarded is also maintained. The
appellant is in jail. He shall serve out the sentence awarded by
the trial Court.
(54) Pending application(s), if any, stands disposed of accordingly.
(55) Let a copy of this judgment and the trial Court’s record be
transmitted to the Court concerned forthwith and in any case
within two weeks from today for information and compliance.
(Zafeer Ahmad, J.) (Rajnish Kumar, J.)
May 27, 2026
Ajit/-
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Criminal Appeal No. 956 of 2006;
Rajendra Versus the State of U.P.
Digitally signed by :-
AJIT KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench